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September 10, 1992


The opinion of the court was delivered by: BY THE COURT; J. WILLIAM DITTER, JR.


 In this section 1983 action, plaintiff claims the defendants violated his First Amendment and due process rights when they discharged him. The defendants have moved for summary judgment. They argue the doctrines of collateral estoppel and res judicata bar plaintiff's First Amendment claim because he litigated the relevant issues before various state agencies and courts, received final decisions on the merits, and lost. The defendants further contend a pre-termination hearing provided appropriate due process. Having considered the parties' briefs, I will grant defendants' motion.


 Harry T. Edmundson was a police officer in the Borough of Kennett Square. In July, 1989, a police lieutenant directed him to make changes in a police report Edmundson had filed. Edmundson failed to do so. In August, 1989, Edmundson violated his chief's orders by not accompanying an inebriated, arrested person to the hospital.

 Based on these two incidents, the chief of police notified Edmundson that Edmundson would be dismissed. On September 12, 1989, the mayor of Kennett Square, the president of the borough council, and a member of council, confronted Edmundson with the charges against him, gave him an opportunity to respond, and ultimately offered him the choice of resigning or being dismissed. Edmundson refused to resign.

 On October 2, 1989, the borough council, acting on the mayor's recommendation, discharged Edmundson. In a letter dated the following day, the borough council explained Edmundson's termination was based on his (1) failure to "arrest, transport or accompany" an inebriated person to the Southern Chester County Medical Center; (2) failure to "properly investigate and prepare the proper report" concerning an attempted burglary; (3) failure to follow proper directives, orders, and procedures of the police department as set forth in various discrepancy reports; and (4) repeated violations of departmental rules and regulations.

 After his termination, Edmundson applied for unemployment compensation, but the Pennsylvania Office of Employment Security denied his claim, concluding he had been discharged for wilful misconduct. Edmundson appealed to the Pennsylvania Unemployment Compensation Board of Review. After a full hearing, a board referee concluded the borough was justified in dismissing Edmundson as a result of his failing to comply with the directions of his superior officers, actions that were indicative of a disregard of his duties and obligations to his employer. The board affirmed the referee's decision. The Commonwealth Court of Pennsylvania also affirmed, holding Edmundson's disregard for his duties and obligations amounted to wilful misconduct. The Supreme Court of Pennsylvania refused to review.

 Edmundson appealed his discharge to the Kennett Square Civil Service Commission. In affirming the termination, the civil service commission found Edmundson had been discharged for two incidents, neglect of duty and disobedience of orders, and three separate suspensions within the past two years as well as numerous other discrepancy reports and disciplinary memos in his file. The commission concluded the "Borough was justified and warranted in terminating Edmundson from his position as a police officer."

 Edmundson is now bringing this section 1983 action against the borough and the individual defendants in their personal and official capacity. He asserts he was fired in retaliation for exercising his First Amendment rights and claims the defendants deprived him of a property interest without due process. He bases these claims on the following events:

 In December, 1988, Edmundson was accused of breaking into the police chief's office and suspended for one day. On March 1, 1989, and June 28, 1989, the Chester County Press published statements Edmundson made concerning his suspension and the associated hearings. These statements included:

I was accused of [breaking into the police chief's office] at 11:00 pm at night, given a letter that I was going to be suspended and suspended that same night. So we have Judge, Jury, and Execution all in one shot.
Out of all the amendments to the Constitution, I feel that he [the police chief] has at least bent most of them and just totally ignored the rest of them.

 Directive MCC-11 of the Kennett Square Police Department Manual provides:

Officers shall not publicly criticize or ridicule the Department, its policies, or other officers by speech, writing, or other expression, where such speech, writing or other expression is defamatory, obscene, unlawful, undermines the effectiveness of the Department, interferes with the maintenance of discipline, or is made with reckless disregard for the truth.

 Article 1 of the Kennett Square Police Department Manual lists "publicly criticizing the official action of a superior official or Borough official" as "conduct unbecoming an officer."

 Having learned of his statements, the borough concluded Edmundson had violated Directive MCC-11 and Article 1 of the police department manual. On July 10, 1989, the borough suspended Edmundson for three days.

 Edmundson appealed his suspension to the borough's civil service commission. The commission held a hearing on September 5, 1989, and affirmed the suspension on September 28, 1989.

 The commission concluded "MCC-11 is a valid and constitutional restriction of free speech," and that "Edmundson's actions constituted a violation of MCC-11 and the Police Manual." Edmundson appealed this decision to the Chester County Court of Common Pleas, but then apparently abandoned the matter.

 Although all the events relating to his statements about the police chief took place prior to Edmundson's discharge, throughout his pre and post-termination proceedings, he neither raised a claim of retaliation nor made any reference to the First Amendment. Understandably, none of the decisions ...

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